Clark At Large

After thinking more about the two reregulation bills working their way through Congress, it occurs to me that there is a faint silver lining on the horizon. How faint depends on who you talk to.

The Dodd bill in the Senate addresses the issue of a fiduciary duty for all financial advisors by eliminating the broker exemptions to the Investment Advisers Act of 1940.  I’m sure you’re all aware that’s the part of the Act which says if you give investment advice incidental to the sale of securities, you don’t fall under the requirements of an RIA, including that pesky duty to put the interests of your clients first. By simply plugging that loophole, the Dodd version of  the Investor Protection Act would mean that anyone who offers investment advice would need to register as an investment advisor and become subject to all the restrictions and duties thereof.

This approach to advisor regulation finds a warm spot in my heart, both for its simplicity and for its far-reaching implications. Instead of reopening the can of worms about what a “fiduciary duty” really means, it simply subjects all advisors to the already existing fiduciary duty that is well established for current RIAs. And we don’t really need to bicker much about when the fiduciary would apply: If you give advice, you are a fiduciary. 

But the real beauty of just dropping the broker exemption is that it doesn’t really matter who regulates it. Yes, I understand there’s more to being an RIA than just the fiduciary duty, but with apologies to all you compliance officers out there, to my mind, the record-keeping, and the disclosure and the custody issues are all short strokes. From the clients’ perspective, fiduciary is king, whether they know it or not. 

So if FINRA wants to regulate the brokers cum RIAs, frankly that makes good sense—since they’re doing it already. Heck, if FINRA wants to regulate all RIAs, I say “who cares?” As long as all those brokers, and insurance agents, and financial planners have a fiduciary duty to their clients, we’re not talking about arbitration, anymore. The final arbiter of whether an RIA violates his or her duty is the courts, and they tend to be notoriously client-oriented. As do professional financial advisors.

The only rain on my happy parade here is that many observers are not optimistic that the Dodd version of the Investor Protection Act will prevail. Of course, at this point, nobody really knows. But what I do know is that it will have a much better chance if the professional advisory community aggressively gets behind it as the far better solution. I can’t see why they wouldn’t: Eliminating the broker exemption  is what we’ve all been talking about since I started covering financial advisors 25 years ago.

As financial services reregulation continues to inch it’s way through Congress—in the form of the Dodd bill in the Senate and the Investor Protection Act in the House—FINRA’s strategy is becoming more clear. For anyone else who’s interested in affecting the legislation or in its eventual outcome, it’s time to start thinking about what that outcome would look like, if it’s not too late, already. 

As Melanie Wadell reports in her December Washington Watch  column in IA, various revealing amendments have been added to the bills. Three of them are particularly troubling, and all hint of FINRA fingerprints. First, Dan Maffei (D-NY) offered an amendment stating that B/D reps will not be held to violate their fiduciary duty solely because their firm offers a limited product line. Well, duh? Why would competitive products be in a client’s best interest? (This is consistent with the CFP Board’s standards for those of you who are keeping score.)

Then, good ol’ Jeb Hensarling (R-TX) wants the fiduciary duty to be limited to each transaction, not an entire client relationship. Sound familiar? That’s not likely to lead to any client confusion over when her broker is acting in her best interest and when he isn’t. This, of course, has been SIFMA’s position all along: They’re all for a fiduciary duty, but only when a broker is specifically giving advice, not when they are selling a product, to the same client. Certainly the clients can sort that out.

And finally, the Big Kahuna: Spencer Bachus (R-AL) wants to extend FINRA’s authority to all brokers who become investment advisors under the IPA, which is to say, virtually all 700,000+ of them. After all, FINRA is already regulating them as RRs. Who’s in a better position to do this job? And to sort out the thorny issues of when the fiduciary duty applies, and just how limited a product list a B/D can have (can you say proprietary?).

Ever notice in legal matters, how little, vague, and seemingly harmless words can come back to bite you on the keister? Words like, oh I don’t know, “harmonize?” Remember in the original Obama Administration white paper, the stated goals were to “create a fiduciary standard and harmonize legislation for financial advisors?” Most of us were so encouraged to find “fiduciary” in there, that we didn’t think too much about this “harmonization” thing. But there it is, in all its haunting glory, right in Rep. Bachus’s amendment.

So, what’s the end game, here? If all financial advisors—including brokers, financial planners, and RIAs—are to have a fiduciary duty to their clients, how are we going to have “harmonized” regulation? It’s a pretty good argument that having one regulator for all of  them would lead to regulatory harmony. But who’s to regulate them? Well, if FINRA is already going to regulate 700,000 of them (under Bachus), and the vast majority of CFPs are already RRs under FINRA anyway, and many RIAs are, too, there’s really only one logical choice here. The wrong one, in my view, but the increasingly likely one. That is, unless someone else makes a surprisingly dynamic move here in the waning minutes. Unfortunately, I haven’t seen any Bobby Fishers playing on our side of the table.